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Royal College of Surgeons advises members on consent as Montgomery bites

In new guidance published on 27 October, the Royal College of Surgeons (RCS) advised its members on how to appropriately obtain consent from patients for medical treatment.

According to the guidelines, clinicians should no longer tell patients which treatment they should have. Instead, they should set out the options available, and let the patient decide for themselves.

The guidance is designed to bring practice in line with the Supreme Court’s 2015 judgment in Montgomery v Lanarkshire Health Board, which resulted in a £5.25m payout for doctors’ failures to adequately explain the small risk of shoulder dystocia to a diabetic mother whose son developed cerebral palsy when he suffered a lack of oxygen during delivery.

The RSC warns that unless changes are made to the current consent process for surgery, its members will risk a dramatic increase in litigation and compensation pay-outs.

The move away from a paternalistic approach to obtaining consent is significant because it changes an aspect of the existing Bolam test i.e. what a responsible body of other doctors would do.

Previously, doctors could defend a decision not to advise a patient of a small risk if they could prove that a responsible body of other doctors would have done the same. The new standard requires that doctors tell patients not only what they think the patients need to know, but also the risks that might matter to the patients. In practice, this means not simply discussing one particular treatment option over others.

Clinical negligence practitioners and patient safety groups have welcomed the new approach to consent. However, the organisational challenge now facing the NHS is considerable. Clinicians already adopting the new guidelines report that typical consultation times have increased, often due to the need for a senior doctor with experience of a range of treatments to talk through the options in detail.

Kirsten Wall, partner in the clinical negligence department at Leigh Day, said of the RCS’s new guidelines: ‘This new approach to obtaining a patient’s consent is an important step away from the previous approach of ‘doctor knows best’ to allowing patients the opportunity to weigh up all the risks and alternative treatment options so they can make a decision that is right for them and their family’.

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